# Madhan Mohan Srivastava v. State of U.P. and others

- **Citation:** (2005) 3 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-29
- **Case number:** Civil Misc. Writ Petition No.46607 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhan-mohan-srivastava-v-state-of-u-p-and-others-40519
- **Pages:** 5

## Headnote

U.P. Collection Amin Rules 1974 Section19-A-Suspension
of
collection
Aminpassed by S.D.O.-challenged on the
ground
of
jurisdiction-appointing
authority of the petitioner was District
Magistrate-can not be suspended by
S.D.O.-now after amendment as per Rule
19-A-the
S.D.O.
is
the
appointing
authority-held-S.D.O. is empowered to
place under suspension to a collection
Amin
even
initially
appointed
by
collector.
Held: Para 15
In my opinion, the judgement of the
Supreme Court in the State of Orissa Vs.
Shiva Parashad Das [supra] is squarely
applicable to the present facts of the
case. Consequently, I hold that the Sub
Divisional Officer had the power to
suspend a collection amin, even though
the
collection
amin
was
initially
appointed by the Collector.
Case law discussed:
AIR 1985 SC-701
AIR 1964 SC-787

(Delivered Hon'ble Tarun Agarwala, J.

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
institutions
recognized
by
the
Board.
xiii. To submit Government of India its
view on any matter with which it is
concerned or which the Govt. of
India or any state Government or
educational organization may refer
to for its advice.
xiv. To advise the Administration of
Union Territories as to the courses
of instruction and syllabi of middle
school education with a view to
securing
coordination
between
middle
school
education
and
secondary education.
xv.
To acquire properties, both movable
and immovable and invest the
surplus funds of the Board in
Government securities or in banks
approved
by
the
controlling
Authority.
To do all such or other things as may be
necessary in order to further the
object of the Board as a body
constituted
for
regulating
and
maintaining
the
standard
of
secondary education.
The
educational
institutions
recognized by the Board of Higher
Secondary Education Delhi shall be
deemed as institution recognized by the
Board.*
*(that Board was merged with the central
Board on 1.7.1962.)
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.46607 of 2005

Madhan Mohan Srivastava ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Srivastava

Counsel for the Respondents:
Sri Suresh Singh
S.C.

U.P. Collection Amin Rules 1974 Section19-A-Suspension
of
collection
Aminpassed by S.D.O.-challenged on the
ground
of
jurisdiction-appointing
authority of the petitioner was District
Magistrate-can not be suspended by
S.D.O.-now after amendment as per Rule
19-A-the
S.D.O.
is
the
appointing
authority-held-S.D.O. is empowered to
place under suspension to a collection
Amin
even
initially
appointed
by
collector.
Held: Para 15
In my opinion, the judgement of the
Supreme Court in the State of Orissa Vs.
Shiva Parashad Das [supra] is squarely
applicable to the present facts of the
case. Consequently, I hold that the Sub
Divisional Officer had the power to
suspend a collection amin, even though
the
collection
amin
was
initially
appointed by the Collector.
Case law discussed:
AIR 1985 SC-701
AIR 1964 SC-787

(Delivered Hon'ble Tarun Agarwala, J.

1. The petitioner was appointed by
the Collector as a "Collection Amin"
3 All] Madhan Mohan Srivastavas V. State of U.P. and others
927
under the U.P. Collection Amin Rules
1974. The petitioner has now been
suspended by an order dated 10.6.2005
issued by the Sub Divisional Magistrate,
Fatehpur, which has been challenged in
the present writ petition.

2. Heard Sri A.K. Srivastava, the
learned counsel for the petitioner and Sri
Suresh Singh, the learned counsel for the
respondents.

3. The contention of the learned
counsel for the petitioner is that the
appointing authority of the petitioner is
the Collector and that he alone was
empowered to suspend the petitioner and
that the Sub Divisional Magistrate had no
power to suspend him.

4. On the other hand, the learned
Standing Counsel submitted that the Sub
Divisional Magistrate has now been
authorised under the Rules to suspend a
Collection Amin.

In order to appreciate the contentions
raised by the rival parties, it would be
appropriate to consider a few provisions
of the Act.

Rule 20 of the Rules of 1974 states
as under:

"20. Appointment- (1) Appointments
to the ordinary grade of the Service shall
be made by the Collector from the list of
directly selected candidates under rule 17,
the list of candidates selected from
Seasonal Collection Amins under rule 17A and the list of promoted candidates
under rule 18, as the case may be, in the
same order in which the names appear in
the list. While making appointments it
shall
be
ensured
that
subject
to
availability of suitable candidates selected
from Seasonal Collection Amins and
promoted from the permanent collection
peons appointments shall be made in the
same order as provided in Appendix-C.

(2)
If
more
than
one
orders
of
appointment are issued in respect of any
one selection a combined order shall also
be issued, mentioning the names of the
persons in order of priority as determined
in the selection or as the case may be, as it
stood in the cadre from which they are
promoted. If the appointment are made
both by direct recruitment and by
promotion, names shall be arranged in
accordance with the cyclic order referred
to in sub-rule (1)."

5. From the aforesaid, it is clear that
the appointing authority is the Collector.
However, Rule 19-A stipulates as under:

"19-A.
Appointing
Authority--
Subject to the provisions of Article 311 of
the
Constitution,
the
Sub-Divisional
Officer shall be the appointing authority:
Provided that in respect of the
persons appointed by the Collector in
accordance with the Rules in force for the
time being, he shall be the appointing
authority for the purpose of Article 311 of
the Constitution:
Provided further that, if so authorised
by the Government, the Collector may
also exercise the powers of appointing
authority in cases where the appointment
has been made by the Sub Divisional
Officer or by any other subordinate
authority."

6. From the aforesaid, it is clear that
the Sub Divisional Officer has now been
made the appointing authority. The
proviso indicates that where a person had
928 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
been appointed earlier by the Collector,
he would remain the appointing authority
for the purpose of Article 311 of the
Constitution.

7. The learned counsel for the
petitioner submitted that in view of the
proviso to Rule 19-A of the Rules, the
Collector alone had the power to suspend
him and that the Sub Divisional Officer
had no authority to suspend him.

8. The question is, what is the
meaning of the words " he shall be the
appointing authority for the purpose of
Article 311 of the Constitution."

Article 311 of the Constitution of
India reads as under:

"311.
Dismissal,
removal
or
reduction in rank of person employed
in civil capacities under the Union or a
State--[1] No person who is a member of
a civil service of the Union or an all-India
service or a civil service of a State or
holds a civil post under the Union or a
State shall be dismissed or removed by an
authority subordinate to that by which he
was appointed.

[2] No such person as aforesaid shall
be dismissed or removed or reduced in
rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges;

Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity or making representation on
the penalty proposed:
Provided further that this clause shall not
apply

(a) where a person is dismissed or
removed or reduced in rank on the ground
of conduct which has led to his conviction
on a criminal charge ; or
(b) where the authority empowered
to dismiss or removes a person or to
reduce him in rank is satisfied that for
some reason, to be recorded by that
authority in writing, it is not reasonably
practicable to hold such inquiry ; or
(c) where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State it is not expedient to hold such
inquiry.

[3] If, in respect of any such person
as aforesaid, a question whether it is
reasonably practicable to hold such
inquiry as is referred to in clause [2], the
decision
thereon
of
the
authority
empowered to dismiss or remove such
person or ro reduce him in rank shall be
final."

9. From the aforesaid, it is clear that
a Government servant shall not be
dismissed or removed by an authority
subordinate to that by which he was
appointed.

10. In State of Orissa and others
Vs. Shiva Parashad Das, AIR 1985 SC
701a Forester was suspended by a District
Forest Officer. He filed a writ petition
before the Orissa High Court, challenging
the suspension on the ground that the
same was passed in contravention to
Article 311 [1] of the Constitution of
India. The High Court quashed the
3 All] Madhan Mohan Srivastavas V. State of U.P. and others
929
suspension order holding that since the
Forester
was
appointed
by
the
Conservator of Forest, he could not be
suspended by the District Forest Officer
who was an authority subordinate to the
Conservator of Forest. The Supreme
Court reversed the judgement of the High
Court holding-

"An order of suspension passed
against a Government servant pending
disciplinary enquiry is neither one of
dismissal nor of removal from service
within Art. 311 of the Constitution."

The Supreme Court further held-

"Clause (1) of Art. 311 will get
attracted only when a person who is a
member of Civil Service of the Union or
an All India Service or a Civil Service of
a State or one who holds a civil post
under the Union or a State is 'dismissed'
or 'removed' from service. The provisions
of the said clause have no application
whatever
to
a
situation
where
a
Government servant has been merely
placed
under
suspension
pending
departmental enquiry since such action
does not constitute either dismissal or
removal from service."

11. In view of the aforesaid, Clause-
[1] of Art. 311 of the Constitution is
attracted where a person is dismissed or
removed from service by the authority.
Clause [1] of Art. 311 of the Constitution
is not attracted when a person is
suspended as suspension is neither a
dismissal or a removal.

12. The learned counsel for the
petitioner placed reliance upon a decision
of the Supreme Court in R.P. Kapoor Vs.
Union of India, AIR 1964 SC 787 in
which it has been held that the appointing
authority also has the power to suspend an
employee. The Supreme Court held -

"On general principles therefore the
authority entitled to appoint a public
servant would be entitled to suspend him
pending a departmental enquiry into his
conduct."

13. The Supreme Court propounded
this principle taking into consideration
Section 16 of the General Clauses Act
which contemplated that where any
Central Act or Regulation gives power of
appointment, such power also includes the
power to suspend or dismiss unless a
different intention appears.

14. In view of the aforesaid, it is
clear that the appointing authority also has
the power to suspend an employee. But in
the present case, the proviso to Rule 19A, a different intention has been given
with regards to the power to be exercised
by the Collector. Initially, the appointing
authority was the Collector, but now after
the amendment, the appointing authority
of a Collection Amin is the Sub
Divisional Officer. Under the proviso, it
has been made clear, that for the purpose
of Article 311 of the Constitution, the
Collector who had been the appointing
authority earlier, prior to the amendment,
would remain the authority for the
purpose
of
Article
311
of
the
Constitution, i.e., the Collector would still
exercise the power of removal or
dismissal. For all other purposes, the Sub
Divisional Officer, was competent to pass
the order, including that of suspension.

15. In my opinion, the judgement of
the Supreme Court in the State of Orissa
Vs. Shiva Parashad Das [supra] is
930 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
squarely applicable to the present facts of
the case. Consequently, I hold that the
Sub Divisional Officer had the power to
suspend a collection amin, even though
the
collection
amin
was
initially
appointed by the Collector.

16. In view of the aforesaid, I do not
find any error in the suspension order.
The writ petition fails and is dismissed. In
the circumstances of the case, I direct the
authority concerned to complete the
enquiry proceedings and pass a final order
within four months from the date of the
receipt of a certified copy of the order.
Parties to bear their own cost.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 57635 of 2005

Mahesh Kumar and others ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ravi Kiran Jain
Sri K.M. Asthana

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Amit Sthalekar

Constitution of India, Art. 226-Service
Law-Rights to get appointment-after the
existence of new distt. Baghpat, 10 posts
of clerks and 4 posts of Stenographers
created-the District Judge selected 73
persons
against
vacancy
10
postsappointment made to all of item by
Transfer to other District-administrator
Judge
holding
appointments
of
the
candidates from sl. No. 11 to 71 as illegal
as were made against non existing
posts-recommendation
for
their
removal-after
show
cause
noticetermination
Order
passed-heldappointment beyond notified sanctioned
strength-void-ab
intio-illegal
humanitarian
approach
not
to
be
adopted.

Held: Para 22

In my view, the judgment cited by the
learned counsel for the petitioners is
distinguishable and, in any case, such
directions cannot be issued by this Court
under Article 226 of the Constitution of
India. The decision in the case of H.C.
Puttaswamy (supra) was passed by the
Supreme Court while exercising the
powers
under
Article
141
of
the
Constitution
of
India.
Such
powers
cannot be exercised by the High Court
under Article 226 of the Constitution.
The High Court can only pass such orders
and directions which are within the four
corners of the provisions of the Act or
the Rules. In the present case, the
petitioners were appointed beyond the
notified
sanctioned
strength.
The
petitioners appointment was void ab
initio. After the appointment of 10
persons, the select list came to an end
and could not be used any further.
Consequently, the appointment of the
petitioner being illegal, from the very
inception,
cannot
be
permitted
to
continue.
In
my
opinion,
no
humanitarian approach can be adopted.
Since
the
appointments
of
the
petitioners were illegal, such illegality
cannot be allowed to continue. The law
must take its course.
Case law discussed:
J.T. 1996 (5) SC-219
1994 (2) UPLBEC-1400
AIR 1995 SC-1371
AIR 1988 SC-1531
AIR 2004 SC-2317
AIR 1986 SC-1043
1991 Supp. (2) SCC-421
1995 (Supp.) (4) SCC 706
2005 (4) SCC-209